Hobby Lobby case: 9 justices to watch

In a rare 90-minute session, the Supreme Court on Tuesday dug deep into the religious-freedom challenge Hobby Lobby and Conestoga Wood Specialties are mounting against the Obamacare contraception mandate.

As in other high-profile cases, court-watchers examined every question, comment, twitch and grimace in a quest to divine where the justices are headed. Of course, it’s a truism that justices’ remarks at arguments don’t always reflect where they will ultimately come down in a case.

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But the comments — and quips — are still our best guide to where justices are at the moment. In that spirit, here’s POLITICO’s take on where the nine justices appear to stand after Tuesday’s proceedings:

Kennedy is often the man to watch in hotly contested Supreme Court cases, and he didn’t disappoint on Tuesday, asking questions that tracked with both sides’ arguments and managed to obscure his overall view.

At the outset of the arguments, Kennedy seemed troubled by the idea of allowing employers’ religious choices to override those of their workers. “You can have hypotheticals about the employer makes them, wants to make them wear burkas and so forth. That’s not in this case. The employee may not agree with these religious beliefs of the employer. Does the religious beliefs just trump? Is that the way it works?”

Later, Kennedy threw a slow-pitch softball to Solicitor General Donald Verrilli about how allowing exemptions for for-profit companies would undercut the overall operation of the health care law.

“Is it your position that part of the compelling interest here is that you have to protect the integrity — the operational integrity of the whole act?” the justice asked.

“It is part of our argument, absolutely,” Verrilli replied.

That prompted Kennedy to joke that the court better look at the whole law then — something it memorably did two years ago.

However, the Reagan appointee quickly turned on the government. First, there were several biting questions about exemptions the administration granted to various entities, undercutting arguments that protecting for-profit companies’ religious beliefs would unravel Obamacare.

Then, Kennedy walked Verrilli into a buzzsaw, claiming that the administration’s position was that companies could lawfully be required to provide not only contraception, but also surgical abortion if a law required it.

”Under your view, a [for-]profit corporation … could be forced in principle to pay for abortions,” he said. “Your reasoning would permit that.”

At the end, Kennedy’s vote still seemed up in the air, but his use of the powerful abortion example, coupled with his references to already-granted exemptions, suggest he’ll rule that the law requires the Obama administration to accommodate the family-owned firms’ religious concerns.

Justice Stephen Breyer

Too cagey to call

Breyer won the award for most mysterious at Tuesday’s arguments. He asked no questions whatsoever of the lawyer for the companies, Paul Clement, during Clement’s first 40 minutes at the lectern or his five-minute rebuttal.

When Breyer opened his mouth about an hour into the session, one of the first things that came out was a kind of disclaimer.

”My question reflects no point of view at all on my behalf,” the Clinton appointee insisted before suggesting there was a “less restrictive way” to provide contraception coverage by having the government pay for it when employers with religious objections didn’t want to. “This is not coming from any point of view,” Breyer claimed again, implausibly, while also demanding a “precise” answer from Verrilli.

Breyer did fret a bit about the implications of allowing taxpayers to withhold taxes to be spent on things they disagree with, but he also seemed to doubt that Jewish or Muslim butchers who organize companies would not have some religious rights. “I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals,” he said, before claiming again that his question was just a question.

Despite his defensiveness, Breyer sounded like a less than sure vote for the administration, though his history suggests he’d be reluctant to allow exemptions that could upend a complex law like Obamacare.

Chief Justice John Roberts

For the companies, but just ones like these

Roberts also gave the administration little to be happy about but did indicate he favors limiting protection to “closely held” companies controlled by families or no more than a few individuals — where the business can really be seen as an extension of the owners.

“Whether it applies in the other situations is a question that we’ll have to await another case when a large publicly traded corporation comes in and says: ‘We have religious principles.’ The sort of situation that I don’t think is going to happen,” he said.

Roberts also reminded everyone that the court wasn’t considering a definitive constitutional ruling, but just one applying a law Congress passed in 1993, the Religious Freedom Restoration Act. “If Congress feels as strongly about this as you suggest,” he told Verrilli, “they can always pass an exemption, an exception to RFRA, which they have done on other occasions. And they haven’t done it here.”

Justice Elena Kagan

Favors the administration, but not down the line

Kagan was the administration’s most vocal advocate Tuesday, but it was a measure of the tough time Verrilli had that even she expressed doubts about the government’s argument that for-profit corporations simply lack religious rights.

“I’m not sure I understand it as a threshold claim,” Kagan said bluntly late in the arguments.

Other than that, though, Kagan was a tenacious defender of applying Obamacare broadly and limiting any new religious exemptions. She rejected out of hand that the owners of Hobby Lobby and the other businesses were being coerced to give up their religious beliefs.

”It’s not saying you must do something that violates your religion. It’s giving you a choice,” Kagan insisted.